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Justice

Dec 1, 2017

What’s stopping a class action in historic harassment cases?

A restricted window means that victims of harassment must immediately apply for mediation support from the AHRC, a luxury many don't have, writes employment law specialist Alex Grayson

This week we have seen explosive allegations levelled at Don Burke. Numerous women have come forward and claimed that he touched them inappropriately, tried to remove their clothing, indecently assaulted them and made them watch videos including bestiality.

The problem is, that many of these allegations relate to conduct occurring in the 1980s, 1990s and early 2000s, which means that prosecuting these claims now for some women may be problematic and potentially out of time.

Taking one step back — in broad terms, the alleged behaviour of Don Burke constitutes sexual harassment — since 1992 this has been defined in the Sex Discrimination Act as “making an unwelcome sexual advance, or an unwelcome request for sexual favours or engaging in other unwelcome conduct of a sexual nature”. This behaviour at work or in connection with work is unlawful and can be litigated. Moreover, in many circumstances both the harasser and the employer will be liable.

The traditional legal avenue for a sexual harassment matter is making an individual complaint to the Australian Human Rights Commission (AHRC) and then proceeding to the Federal Court or Federal Circuit Court if the complaint doesn’t settle at mediation.

While cases like this would typically be run as an individual action, it is possible that groups of victims of sexual harassment could commence litigation alleging sexual harassment and/or negligence against their prior employer. These cases are complicated and require a critical mass of applicants with sufficient commonality to their claim. Whether this can be established remains to be seen.

Unfortunately however for women seeking to come forward about historical harassment concerns, the AHRC can terminate a complaint if it is made more than 6 months after harassment occurred. In short — the older a claim is, the less likely it will be accepted.

What this means is that individuals who allege historical sexual harassment will not get access to the confidential mediation provided by the AHRC and will instead have to go straight to court. Even when they get there, they will need to get leave from the court to have their application dealt with.

One of the marked characteristics of sexual harassment is that the victim is often deeply traumatised by the conduct and is unwilling to come forward for fear of retribution. The exposé on Harvey Weinstein and the subsequent outing of other sexual harassers has meant that many women are finally willing to come forward and talk about their experiences and the effect it has had on them, in the knowledge that they are not alone.

What is of great concern however is that these brave victims may have to face down their harassers in open court rather than in mediation given the time that has passed since the alleged harassment. Unlike many other areas of law the window of time for making a complaint to the AHRC is very limited. This can be contrasted with other employment law causes of action — for example, breach of contract cases (six years), breach of deed (12 years or more) and breach of enterprise agreement clauses (six years).

That said, complaints can be accepted by the AHRC and the court out of time, and I have assisted many women through that process.

However, the fact remains that for too many women being able to seek access to justice when they are ready can be a difficult path — and is an area where urgent reform is needed.

In recent times we have seen law reform in many states to remove a statute of limitation where this has been recognised as a barrier to accessing justice, including for sufferers of institutional sexual abuse.

While no one is seeking to suggest that the lifelong implications for those who survive child sexual abuse are comparable, women and men who have suffered sexual harassment often suffer significant psychological trauma. These victims should not be barred from getting a mediated or litigated outcome just because events occurred over a year ago.

What we are seeing today is that it takes courage and a collective societal outcry for victims of sexual harassment to feel that they can come forward and make a complaint.

Those victims should be able to access justice quickly, when they feel they are strong enough to do so (including via an assisted mediation). That right should be recognised and addressed in the same way as it has been in other areas, ideally by abolishing the time limit in the AHRC or at the least ensuring that it is comparable to other employment law jurisdictions. 

Alex Grayson specialises in Employment and Industrial Law and heads Maurice Blackburn’s NSW Employment Law practice.

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